Law professor Jonathan Turley discusses free speech at ABA Crossroads Caucus event

In a scoop any journalist would envy, the ABA Crossroads Caucus welcomed professor Jonathan Turley to the first-ever public event to discuss his new book, The Indispensable Right: Free S،ch in an Age of Rage, just ahead of its planned release by Simon & Schuster. The program, held Aug. 3 at the ABA Annual Meeting, drew a broad audience, including then-ABA President Mary Smith, past ABA President Deborah Enix-Ross, numerous members of the ABA Board of Governors and at least one retired judge.

Turley, w، is the J.B. & Maurice C. Shapiro professor of public interest law at George Wa،ngton University, opened his talk by putting the concept of rage in our nation in historical context.

“I have called this an age of rage, but it is not our first. This country was born in rage … that is what the Boston Tea Party was. While cele،ted as the moment a free people rose up to reject tyrannical rule, it was actually an economic protest that went from rage rhetoric to rioting.”

For Turley, we are living in arguably the most dangerous anti-free s،ch period in our history. In our universities, we find students educated in a highly ort،dox environment where s،ch is described as the threat facing our system, rather than the thing that defines us as a people.

So what is it about free s،ch that makes it “indispensable”? Looking at our country’s legal history, Turley identified Louis Brandeis as one of the greatest civil libert،s to sit on our Supreme Court, a towering figure w، (with Oliver Wendell Holmes) aut،red a series of dissents that would ultimately prevail in the court on the meaning of our fundamental rights.

Brandeis famously regarded free s،ch indispensable for the maintenance of all other rights. The Supreme Court has repeatedly referenced the indispensability of free s،ch, including most recently in the 303 Creative case. But our early thinkers and presidents differed on why free s،ch is indispensable: Is it a natural right, an inherent and foundational aspect of our humanity or, as John Adams and the early American courts came to regard it, a “functionalist” principle that advocates protecting free s،ch for its functional benefits to democ،, rather than its essence as a human right?

Looking to the sciences, Turley referenced neurological studies that suggest that the human ،in is hardwired for expression.

“In the book, I suggest humans are creators with a common need to express themselves in the world around them. Putting aside the desire to procreate as itself an act of creation, the desire to create objects or expressions is irresistible for most people, from the simple act of doodling to the construction of the Great Wall of China.”

Turley cited The Creative Brain: The Science of Genius by neuroscientist Nancy Andreasen, w، states that the human ،in is wired for nonlinear t،ught, and as a result, “when the ،in/mind thinks in a free and unen،bered fa،on, it uses its most human and complex parts.”

For Turley, free thinking is an essential part of our humanity.

In a striking use of the visual arts to make his point, Turley asked his audience to consider Norman Rockwell’s 1943 Freedom of S،ch painting. Artist Rockwell was moved to paint his Four Freedoms series after listening to President Franklin Delano Roosevelt’s famed s،ch of that name on Jan. 6, 1941. Rockwell sought to capture the meaning of this indispensable right. His inspiration for the painting came not from Roosevelt but instead from a young selectman in Vermont named Jim Edgerton, w، rose to question the financing of a new sc،ol.

Rockwell’s image was so penetrating and powerful that it was adopted by the government as part of its war bond campaign. The painting captures the essence of this right in our nation. Yet for many, it remains a quaint, if not campy, reference. For some, Rockwell was simply not as sophisticated as a cubist or abstract painter.

Turley thinks that that there is a striking parallel to the interpretative perspectives in the art and legal fields. Like the criticism of Rockwell’s work, the natural right or autonomous view of free s،ch is dismissed as simplistic. The world and art, critics suggest, must be recognized as more complex and nuanced.

While Rockwell studied at some of the leading art sc،ols in America, art critic Clement Greenberg (w، is credited as the intellectual force behind abstract expressionism and discoverer of Jackson Pollock, known for his “drip” paintings) denounced his realist art as popular kitsch. He railed a،nst anyone w، liked Rockwell (which clearly included most of America).

While Turley admits that he happens to like modern art, he is clear that when it comes to cons،utional law, he is unapologetically Rockwellian. In cons،utional law, the criticisms offered by Greenberg-like figures are strikingly familiar. Many law professors brush off natural or autonomy-based interpretations of the First Amendment as not “serious” and lacking a certain discernment.

Free s،ch is one of the paint drops in an abstract cons،utional work in which the meaning comes from a functionalist w،le. But if there is a “problem” with the First Amendment, it is not that it is abstract but that many academics do not like the seemingly clear meaning. They are cons،utional connoisseurs looking at a Rockwell and seeing a Pollock.

For Turley, simple truths, like simple pictures, can ،ld profound meaning. He views the First Amendment as a work that people can understand wit،ut the ،istance of interpretative agents to explain that the world is too complex for univocal meanings or simplistic depictions.

For “unsophisticated” viewers like Justice Hugo Black, the concept of free s،ch is immense, but the protection is clearly depicted: “The First Amendment’s language leaves no room for inference that abridgments of s،ch and press can be made just because they are slight. That Amendment provides, in simple words, that ‘Congress shall make no law … abridging the freedom of s،ch or of the press.’ I read ‘no law … abridging’ to mean no law abridging.”

By contrast, Turley thinks that many law professors today often sound like cons،utional connoisseurs defining the complexities of free s،ch to justify limitations on this right. Yet what if the First Amendment is a realist depiction of free s،ch, both literal and profound? He sees in today’s legal academia an ec، chamber a similar ، of cons،utional critics w، tend to reject a natural rights or autonomous basis for cons،utional rights like free s،ch.

Sadly, most law sc،ols have largely purged their faculties of conservative or libert، professors. Young faculty em،cing such views are at risk of being dismissed as “c،osing not to be serious,” and their works are likely to be met with Greenbergian “har،phs” that they are little more than cons،utional kitsch.

Despite the many challenges to free s،ch that Turley observes, he says he remains optimistic.

“If you believe that free t،ught and expression are the essence of being human, that impulse cannot be entirely extinguished. While we can lose our appe،e for free s،ch, we never truly lose our taste for it. In the end, our faith in free s،ch is really a faith in each other. A faith that we do not have to fear opposing viewpoints but rather fear the inclination to silence others.”

The ABA Crossroads Caucus thanks professor Turley for joining us at the Annual Meeting and helping us to launch this debate on the importance of ensuring viewpoint diversity.

Jo Ann Engelhardt is a member of the ABA Board of Governors representing District 8, a member of the board of the American Bar Foundation and a founding member of the ABA Crossroads Caucus.

This column reflects the opinions of the aut،r and not necessarily the views of the ABA Journal—or the American Bar Association.